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Tuesday, July 15, 2008

Immigration decision making not up to scratch

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Three weeks ago, the Commonwealth Ombudsman released a report following an investigation of the way Freedom of Information applications have been handled by the Department of Immigration and Citizenship. The report was critical of many aspects, but made it clear that the investigation had not involved examination of the quality of decisions made by the Department.

This decision last week by the Administrative Appeals Tribunal concerning documents sought by Dr Haneef provides an insight into decision making in the Department when dealing with an application for documents about the decision making process. The Department originally claimed 282 documents were exempt. After subsequent concessions, the removal of 73 duplicates, and the Tribunal's decision on six remaining documents, one was found to be exempt.

It's worth noting that the original decision was made five months after the coming to office of the Rudd Government, with its many pre-election commitments to change the culture in government in the direction of greater openness and transparency.

In April this year Dr Haneef applied for documents relating to the cancellation last year of his Business (Long Stay) visa, which had an expiry date of 30 August 2010; the decision to detain him in 2007 and to his ongoing detention at that time; the issue of a Criminal Justice Stay Certificate; and any documents recording or relating to communications between Government Departments concerning Dr Haneef. Here is the relevant part of the original determination:

"The documents I have exempted under subsection 36(1) are internal working documents. The documents to which you have sought access are documents which contain advice and recommendations prepared for the deliberative processes whose disclosure would be contrary to the public interest.

In coming to this view, I considered the following factors in favour of disclosure:

There is a general public interest in making information held by the Government accessible to the public;

A person or the general public is entitled to have access to documents containing decisions which affect them. Disclosure may reveal the reasons for decision; and

The need for openness and accountability of the Department’s operations.

On the other hand, I considered the following in favour of non-disclosure:

Advice to Ministers or other senior officers or free expression of opinion, if disclosed, would hamper the flow of advice from bureaucrats or others if they thought this advice could be subject to later scrutiny;

Disclosure would mean officers would be reluctant to record sensitive issues; and

Disclosure would inhibit full and frank discussions and may leave some people reluctant to record an opinion or provide advice.

On balance, I have decided that the public interest to exempt such documents outweighs the public interest in disclosing documents and there [sic] exempt them from disclosure under subsection 36(1) of the FOI Act.”

The Tribunal upheld the claim in respect of one of the six documents in dispute by the time the matter came before it, on the basis that it was contrary to the public interest to disclose a document that "will more readily be misunderstood by the public and mischaracterised by those who are unacquainted with the full details of Dr Haneef’s case and the way in which various Australian governmental agencies and officers handled it.....The preliminary nature of the views expressed, the questions which are raised but not answered, the speculation as to how events may unfold in the future and the way in which the Department might respond – all of these characteristics of the document demonstrate that disclosure would more readily lead to its misconstruction in the public arena than the other documents considered below."[41]

As to the other five, the Tribunal rejected arguments that disclosure would mean that officers would be less candid and frank in providing advice, and that this on its own would justify non disclosure on public interest grounds. There was "no convincing evidence .. presented to the Tribunal by the Department establishing any direct, significant or specific disadvantage that would be likely to flow from disclosure.."[45-50].

"With regard to drafts of the Statement of Reasons eventually given by the Minister in relation to the cancellation of Dr Haneef’s visa.. (t)he Department submits that the fact that these documents are in draft form justifies a finding that disclosure would not be in the public interest. The same general objection regarding the discouragement of candour and frankness is also advanced by the Department, but again it is not supported by any specific evidence which indicates that publication of these documents would be adverse to the public interest. Moreover, we are of the view that there is a very cogent public interest in having the unexpurgated reasons for cancellation of the visa made public, and that this is a consideration which should be given due weight. Far from accepting the Department’s submission that disclosure of the documents would run contrary to the public interest, we find that the public interest in respect of these documents warrants disclosure."[49]

We can only ponder why the Department didn't get closer to the correct decision way back in April. Unlike other aggrieved applicants,at least Dr Haneef got an expedited hearing.

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.